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EXHIBIT hh
INFORMATION RESOURCES, INC.
FIRST AMENDMENT TO CREDIT AGREEMENT
This First Amendment to Credit Agreement (herein, the "Amendment")
is entered into as of February 10, 1999, between Information Resources, Inc.,
the Banks party thereto, and Xxxxxx Trust and Savings Bank, as Agent for the
Banks.
PRELIMINARY STATEMENTS
A. The Borrower and the Banks entered into a certain Credit
Agreement, dated as of October 31, 1997 (the "Credit Agreement"). All
capitalized terms used herein without definition shall have the same meanings
herein as such terms have in the Credit Agreement.
B. The Borrower has requested that the Banks (i) reduce the amount
of the Revolving Credit Commitments from $75,000,000 to $60,000,000, (ii) extend
the Termination Date from October 31, 2001 to October 31, 2002, (iii) amend the
Eurodollar Margin, (iv) increase the amount of the Swing Line Commitment from
$5,000,000 to $10,000,000, (v) amend certain financial covenants, and (vi) make
certain other amendments to the Credit Agreement, and the Banks are willing to
do so under the terms and conditions set forth in this Amendment.
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the parties hereto agree as
follows:
SECTION 1. WAIVER
The Borrower has informed the Agent and the Banks that as of December
31, 1998, the Borrower was not in compliance with Section 7.8 of the Credit
Agreement (Cash Flow Coverage Ratio). The Borrower has requested that the Banks
waive compliance with Section 7.8 of the Credit Agreement and, by signing below,
the Banks hereby agree to waive compliance with Section 7.8 of the Credit
Agreement through the period ending on (but not after) December 31, 1998.
Notwithstanding anything herein to the contrary, the waiver in this Section 1
shall not become effective unless and until the conditions precedent set forth
in Section 3 hereof have been satisfied.
SECTION 2. AMENDMENTS.
2.1 The address, lending office and amount of the Revolving Credit
Commitments set forth on the signature pages for the Banks shall be amended in
their entirety to read as set forth below:
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AMOUNT OF COMMITMENTS: NAME OF BANK AND ADDRESS
Revolving Credit Commitment: XXXXXX TRUST AND SAVINGS BANK
$32,000,000 Address:
000 Xxxx Xxxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: Xx. Xxxxxxx X. Xxxx
Telecopy: (000) 000-0000
Telephone: (000) 000-0000
Lending Office:
000 Xxxx Xxxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
Revolving Credit Commitment: LASALLE NATIONAL BANK
$20,000,000 Address:
000 Xxxxx XxXxxxx Xxxxxx, Xx. 000
Xxxxxxx, Xxxxxxxx 00000
Attention: Mr. Xxxx XxXxxxx
Telecopy: (000) 000-0000
Telephone: (000) 000-0000
Lending Office:
000 Xxxxx XxXxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
Revolving Credit Commitment: THE BANK OF NEW YORK
$8,000,000 Address:
Central Division, 00xx Xxxxx
Xxx Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xx. Xxx Xxxxxx
Telecopy: (000) 000-0000
Telephone: (000) 000-0000
Lending Office:
Central Division, 19th Floor
0 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
2.2 The definition of "Eurodollar Margin" appearing in Section 1.3
(b) of the Credit Agreement shall be amended and restated to read as follows:
"Eurodollar Margin" means, from one Pricing Date to the
next, a rate per annum determined in accordance with the
following schedule:
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CASH FLOW COVERAGE RATIO EURODOLLAR MARGIN:
FOR SUCH PRICING DATE:
Less than 1.0 to 1.0 1.35%
Equal to or greater than 1.0 to 1.0, but 1.20%
less than or equal to 1.05 to 1.0
Greater than 1.05 to 1.0 1.0%
The Borrower and the Banks acknowledge and agree that from and
after the effective date of the First Amendment to Credit
Agreement dated as of February 10, 1999, by and among the
Borrower, the Banks, and the Agent (the "First Amendment"),
until the next Pricing Date, the Eurodollar Margin shall be
1.35%.
2.3 The last sentence of Section 2.1 of the Credit Agreement shall
be amended and restated to read as follows:
For purposes hereof, the term "Applicable Commitment
Fee" means, from one Pricing Date to the next, a rate
per annum determined in accordance with the following:
CASH FLOW COVERAGE RATIO APPLICABLE
FOR SUCH PRICING DATE: COMMITMENT FEE:
Less than 1.0 to 1.0 0.25%
Equal to or greater than 1.0 to 1.0, 0.20%
but less than or equal to 1.05 to 1.0
Greater than 1.05 to 1.0 0.15%
The Borrower and the Banks acknowledge and agree the from and
after the effective date of the First Amendment until the next
Pricing Date, the Applicable Commitment Fee shall be .25%.
2.4 The definition of "Swing Line Commitment" appearing in Section
4.1 of the Credit Agreement shall be amended and restated to read as follows:
"Swing Line Commitment" means the commitment of Xxxxxx
Bank to make Swing Loans in the aggregate amount of
$10,000,000 at any one time outstanding.
2.5 The definition of "Termination Date" appearing in Section 4.1
of the Credit Agreement shall be amended and restated to read as follows:
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"Termination Date" means October 31, 2002, or such later
date to which the same may be extended pursuant to
Section 2.2 hereof, or such earlier date on which the
Revolving Credit Commitments are terminated in whole
pursuant to Section 1.19, 8.2 or 8.3 hereof.
2.6 Section 7.6 of the Credit Agreement shall be amended and
restated to read as follows:
Section 7.6. Consolidated Tangible Net Worth. The Borrower
shall, as of the last day of each quarter-annual accounting
period of the Borrower, maintain Consolidated Tangible Net Worth
in an amount not less than the sum of (i) $200,000,000 plus (ii)
25% of Consolidated Net Income for each fiscal year ending on
and after December 31, 1999, for which such Consolidated Net
Income is a positive amount (i.e., there shall be no reduction
to the amount of Consolidated Tangible Net Worth required to be
maintained hereunder for any fiscal year in which Consolidated
Net Income is less than zero); provided that the minimum
required amount of Consolidated Tangible Net Worth set forth
above shall be further increased by 100% of the net proceeds
received by the Borrower from any offering of equity securities
of the Borrower received at any time after December 31, 1998
(other than proceeds received from the exercise of stock options
to purchase shares of the Borrower's common stock existing as of
October 31, 1997.
2.7 Section 7.7 of the Credit Agreement shall be amended and
restated to read as follows:
Section 7.7. Leverage Ratio. The Borrower shall, as of the last
day of each quarter-annual accounting period of the Borrower,
maintain a ratio of Consolidated Total Liabilities to
Consolidated Tangible Net Worth of not more than 1.0 to 1.0.
2.8 Section 7.8 of the Credit Agreement shall be amended and
restated to read as follows:
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Section 7.8. Cash Flow Coverage Ratio. The Borrower shall, as
of the last day of each quarter-annual accounting period of
the Borrower ending during the periods specified below,
maintain the ratio of Consolidated Cash Flow for the four
fiscal quarters of the Borrower then ended to Consolidated
Fixed Charges for the same four fiscal quarters then ended
(the "Cash Flow Coverage Ratio") of not less than:
FROM AND TO AND CASH FLOW COVERAGE
INCLUDING INCLUDING RATIO SHALL NOT BE LESS
THAN:
12/31/98 12/30/99 .85 to 1.0
12/31/99 12/30/00 .90 to 1.0
12/31/00 and at all times thereafter 1.05 to 1.0
2.9 Exhibit A-1 to the Credit Agreement shall be amended and
restated to read as set forth on Schedule I attached hereto.
2.10 The Attachment to Compliance Certificate appearing in Schedule
7.5 to the Credit Agreement shall be amended by deleting the ratio "1.30:1.0"
appearing in line B-4 thereof and replacing it with the ratio "1.0:1.0" in lieu
thereof.
SECTION 3. CONDITIONS PRECEDENT.
The effectiveness of this Amendment is subject to the satisfaction of
all of the following conditions precedent:
3.1 The Borrower and the Banks shall have executed and delivered
this Amendment.
3.2 The Borrower shall have executed and delivered to (a) the
Agent the Swing Line Note (the "New Swing Line Note") payable to Xxxxxx Trust
and Savings Bank in the form of note attached hereto as Schedule I, and (b) the
Agent for each Bank a Committed Loan Note (the "New Committed Loan Notes") in
the amount of each Bank's Revolving Credit Commitment as amended hereby.
3.3 The Agent shall have received copies (executed or certified,
as may be appropriate) of all legal documents or proceedings taken in connection
with the execution and delivery of this Amendment to the extent the Agent or its
counsel may reasonably request.
3.4 Legal matters incident to the execution and delivery of this
Amendment shall be satisfactory to the Agent and its counsel.
3.5 The Agent shall have received for each of the Banks an
amendment fee equal to 0.10% of each Bank's amended Revolving Credit Commitment.
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Upon the effectiveness of this Amendment, each Bank shall return to the
Agent (for return to the Borrower) the prior Committed Loan Notes and Swing Loan
Note (which are being replaced by the New Committed Loan Notes and the New Swing
Line Note, respectively) held by such Banks marked "Replaced by promissory note
dated February 10, 1999" or words of like import.
SECTION 4. REPRESENTATIONS.
In order to induce the Banks to execute and deliver this Amendment, the
Borrower hereby represents to the Banks that as of the date hereof, the
representations and warranties set forth in Section 5 of the Credit Agreement
are and shall be and remain true and correct (except that the representations
contained in Section 5.4 shall be deemed to refer to the most recent financial
statements of the Borrower delivered to the Banks) and the Borrower is in
compliance with the terms and conditions of the Credit Agreement and no Default
or Event of Default has occurred and is continuing under the Credit Agreement or
shall result after giving effect to this Amendment.
SECTION 5. MISCELLANEOUS.
5.1 Except as specifically amended herein, the Credit Agreement
shall continue in full force and effect in accordance with its original terms.
Reference to this specific Amendment need not be made in the Credit Agreement,
the Notes, or any other instrument or document executed in connection therewith,
or in any certificate, letter or communication issued or made pursuant to or
with respect to the Credit Agreement, any reference in any of such items to the
Credit Agreement being sufficient to refer to the Credit Agreement as amended
hereby.
5.2 The Borrower agrees to pay on demand all costs and expenses of
or incurred by the Agent in connection with the negotiation, preparation,
execution and delivery of this Amendment and the replacement Notes, including
the fees and expenses of counsel for the Agent.
5.3 This Amendment may be executed in any number of counterparts,
and by the different parties on different counterpart signature pages, all of
which taken together shall constitute one and the same agreement. Any of the
parties hereto may execute this Amendment by signing any such counterpart and
each of such counterparts shall for all purposes be deemed to be an original.
This Amendment shall be governed by the internal laws of the State of Illinois.
[SIGNATURE PAGES TO FOLLOW]
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This First Amendment to Credit Agreement is dated as of the date first
above written.
INFORMATION RESOURCES, INC.
By
Name
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Title
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Accepted and agreed to as of the date and year first above written.
XXXXXX TRUST AND SAVINGS BANK, in its
individual capacity as a Bank and as Agent
By
Name
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Title
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LASALLE NATIONAL BANK
By
Name
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Title
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THE BANK OF NEW YORK
By
Name
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Title
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SCHEDULE I
EXHIBIT A-1
SWING LINE NOTE
Chicago, Illinois
$10,000,000.00 __________, 1999
On the Termination Date, for value received, the undersigned,
Information Resources, Inc., a Delaware corporation (the "Borrower") hereby
promises to pay to the order of Xxxxxx Trust and Savings Bank (the "Bank"), at
the principal office of Xxxxxx Trust and Savings Bank in Chicago, Illinois, the
principal sum of (i) Ten Million and 00/100 Dollars ($10,000,000.00), or (ii)
such lesser amount as may at the time of the maturity hereof, whether by
acceleration or otherwise, be the aggregate unpaid principal amount of all Swing
Loans owing from the Borrower to the Bank under the Swing Line Commitment
provided for in the Credit Agreement hereinafter mentioned.
This Note evidences Swing Loans made and to be made to the Borrower by
the Bank under the Swing Line Commitment provided for under that certain Credit
Agreement dated as of October 31, 1997, as amended, by and among the Borrower,
Xxxxxx Trust and Savings Bank, individually and as Agent thereunder, and the
other Banks which are now or may from time to time hereafter become parties
thereto (said Credit Agreement, as the same may from time to time be modified,
amended or restated being referred to herein as the "Credit Agreement"), and the
Borrower hereby promises to pay interest at the office described above on each
Swing Loan evidenced hereby at the rates and at the times and in the manner
specified therefor in the Credit Agreement.
Each Swing Loan made under the Swing Line Commitment provided for in
the Credit Agreement by the Bank to the Borrower against this Note, any
repayment of principal hereon and the interest rates applicable thereto shall be
endorsed by the holder hereof on a schedule to this Note or recorded on the
books and records of the holder hereof (provided that such entries shall be
endorsed on a schedule to this Note prior to any negotiation hereof). The
Borrower agrees that in any action or proceeding instituted to collect or
enforce collection of this Note, the entries so endorsed on a schedule to this
Note or recorded on the books and records of the holder hereof shall be prima
facie evidence of the unpaid principal balance of this Note and the interest
rates applicable thereto.
This Note is issued by the Borrower under the terms and provisions of
the Credit Agreement, and this Note and the holder hereof are entitled to all of
the benefits and security provided for thereby or referred to therein, to which
reference is hereby made for a statement thereof. This Note may be declared to
be, or be and become, due prior to its expressed maturity, voluntary prepayments
may be made hereon, and certain prepayments are required to be made
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hereon, all in the events, on the terms and with the effects provided in the
Credit Agreement. All capitalized terms used herein without definition shall
have the same meanings herein as such terms have in the Credit Agreement.
This Note is issued in substitution for and in replacement of, and
evidences (among other things) the indebtedness previously evidenced by, that
certain Swing Line Note dated October 31, 1997 payable to the order of the Bank
in the original principal amount of $5,000,000.
This Note shall be construed in accordance with, and governed by, the
internal laws of the State of Illinois without regard to principles of conflict
of law.
The Borrower hereby promises to pay all reasonable costs and expenses
(including attorneys' fees) suffered or incurred by the holder hereof in
collecting this Note or enforcing any rights in any collateral therefor. The
Borrower hereby waives presentment for payment and demand.
INFORMATION RESOURCES, INC.
By
Name
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Title
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